On the 20th of August, 1844, Stockwell and Reynolds filed a bill in chancery against Robert H. Milroy, Samuel Grimes, and Samuel Milroy. The bill alleges, that at the September term of the Carroll Circuit Court, 1840, the complainants recovered a judgment against Samuel Grimes and Samuel Milroy, in an action of debt upon an appeal bond, for the sum of 3000 dollars, to be discharged on the payment of 2843 dollars and 11 cents, the damages assessed, together with the costs of the suit; and that Robert H. Milroy, having become security for the payment of said judgment with the interest and costs within three years from the 22d day of May, 1841, on that day executed a mortgage of certain lands to Stock- ' well and Reynolds, conditioned that if the said Samuel
On the 21st of April, 1845, Samuel Milroy entered his appearance and the cause was continued.
On the 20th of October, 1845, the complainants suggested to the Court the death of Samuel Milroy, and it was ordered that the suit be abated as to him; and on the same day, the other defendants having made default, a decree was rendered, pro confesso, against Robert H. Milroy and Samuel Grimes. The Court then proceeded to take an account of what was due the complainants of the debt secured by the mortgage, and found that there was due for principal and interest the sum of 1650 dollars and 67 cents. It was therefore decreed that Robert H. Milroy pay said sum within thirty days, and that, in. default of such payment, the mortgaged premises be sold, &c.
It is objected to this decree that there should have been a bill of revivor against the heirs and personal representatives of Samuel Milroy, it appearing by tire record that he died during the pendency of the suit. On the other hand, it is contended by the defendants in error, that Samuel Milroy had no interest and was not a necessary party.
It is not easy to deduce from the books any precise rule for determining who are necessary parties to a suit in equity, but in general, all persons materially interested in the subject of the suit should be brought in, to make the performance of the order of the Court safe to those
In Brooks v. Stewart the bill stated that the plaintiff had, with the consent of the defendant, who was a surety, released the principal debtor by deed, and prayed payment by the surety of the debt. It was held that the principal debtor was a necessary party, as it was not perfectly clear that the latter might not be liable to contribute.
Stokes v. Clendon was the case of a mortgage by a principal of one estate, and by the surety of another as a collateral security. It was determined by the master of the rolls, that a bill of foreclosure against the principal could not be sustained, without making the other mortgagor a party, because the latter had a right to redeem and to be present at the account to prevent the burden ultimately falling upon his own estate, or at least falling upon it to a larger amount than the other estate might be sufficient to satisfy.
In this case it cannot be doubted that the judgment debtors were interested in the amount which should be found due.
The decree is reversed and cause re